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The takeaway: A court-appointed amicus curiae lawyer has a limited, but important, role in cases in which they’re assigned. They must uphold a duty of loyalty to the court and act as a lawyer of, and for, the court. Their functions cannot go against the duty of impartiality. The big picture:
In a case for two counts of frst-degree murder, Mr. Kahsai sought to represent himself. He regularly disrupted proceedings and failed to meaningfully advance a defence for himself or help move the matter along. The trial judge thus determined that it was essential to appoint amicus curiae in order to ensure Mr. Kahsai’s fair trial. This lawyer was appointed to cross-examine witnesses, though he was instructed not to advocate for Mr. Kahsai. Mr. Kahsai continued to be disruptive and resisted the court-appointed lawyer, deciding to be uncooperative. After Mr. Kahsai was convicted of the charges, he appealed on a number of grounds, including an unfairness brought upon by the trial judge’s failure to appoint amicus with an adversarial role earlier on in the trial. These appeals were dismissed. The Supreme Court held here that the trial judge has the discretion, broad in scope, to appoint amicus with specifc powers that suit the case at hand. While it may be open to the trial judge to appoint a more partial amicus, the trial judge should consider several factors in determining the scope and the partiality of the amicus. These factors include looking at the trial in its whole context: the nature and complexity of the charges, whether it is a judge-alone or jury trial, the attributes of the accused, what the assistance is needed for (whether that be to test the Crown’s case or advance a defence), and what assistance the Crown and trial judge can provide. Ahead of an appointment of amicus, the trial judge should canvass with the parties about the necessity of the appointment and the potential scope. The role of the amicus can be restricted by the rights of the accused to conduct their own defence (though this constitutional right is not absolute). Amicus appointments can also be restricted by other factors: They cannot be used to circumvent the inability to secure counsel at legal aid rates and the role cannot be given scope that conficts with the amicus role of loyalty to the court. Ultimately, in this case, the Supreme Court held that the discretionary decision made by the trial judge was appropriate in the dificult circumstances of a strenuous trial. Given that the accused had insisted upon advancing his own defence, the trial judge appointed an amicus with a limited role to help move the proceedings along. There was no irregularity found here to advance a finding of a miscarriage of justice, and the appeal was thus dismissed.
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Blog Post By: Gabe Nisker
The takeaway: Courts need to be careful about the use of lay opinion evidence. The conclusion: In this Ontario Court of Appeal decision, the court set aside convictions and ordered a new trial for Mr. Jenkins, who had previously been convicted on several charges pertaining to drug traficking. The full story: In the appeal, Mr. Jenkins’s counsel put forward that fve police oficers gave what’s called “lay opinion evidence” that was improperly admitted in the initial trial. Lay opinion evidence is opinion evidence not given by an expert, and it is only permissible under a limited number of circumstances outlined in the case of Graat v. The Queen. Here, the opinion evidence in question was that these oficers found Mr. Jenkins’s conduct to be consistent with drug traficking. The question before the court was whether these opinions could be permissible. In each instance, the oficer had been asked a question like “What do you make of this behaviour in your experience?” and ofered his opinion thereafter. Justice Copeland, relying on a previous case (R. v. Nguyen, 2023 ONCA 531), pointed to the various issues with this evidence. First, the Crown had not sought to qualify these surveillance oficers as oficial experts on indicators of drug traficking. Next, the jury could weigh the interactions as described by the officers without their additional conclusive opinions. Without those directly stated opinions, the officers could still clearly convey what they had seen, and the jury could still understand what was put before them. However, to distinguish this case from Nguyen and others, Justice Copeland declined to apply the curative proviso and ordered a new trial. The curative proviso would allow for the admission of the opinion evidence anyway, if the Crown can meet the burden of showing a minor or harmless error or if they show that the case was so overwhelming against the person appealing their conviction (here, Mr. Jenkins). Justice Copeland held that the signifcance of having this trial in front of a jury without the trial judge’s caution about the evidence showed great potential for misused evidence worthy of a new trial. Weighing the whole of the error, Justice Copeland saw that it was not minor or harmless. Further, to the use in the instance of an overwhelming case against Mr. Jenkins, Justice Copeland found that the number of live issues, including questions of credibility, meant that there was a strong, but not overwhelming, case. For that reason, the appeal was allowed, the convictions set aside, and a new trial was ordered. By: Gabe Nisker
The takeaway: Know your rights to be tried in the oficial language of your choice, whether that be English or French. First instance judges must make the accused aware of their Section 530(3) rights. The full story: In this case, Mr. Tompouba, a bilingual Francophone, brought an appeal on the grounds that there was an error in the application of the law. He claimed that he would have preferred to have his trial in French and that he did not receive the free and informed choice he should have under Section 530(3) of the Criminal Code. Section 530(3) enshrines an accused’s right to be advised of their fundamental right to be tried in the language of their choice (English or French) and how it is to be exercised properly. This section of the Criminal Code puts upon a judge a two-pronged duty, requiring them to ensure the accused is properly informed. They must take steps to make the accused aware of their rights and make them aware of how to exercise them. A frst appearance judge who fails to make the accused aware infringes this right. A breach of this right is considered an error of law under s. 686(1)(a)(ii) of the Criminal Code: If the frst appearance judge doesn’t make the accused aware of their right, this is an improper application of a legal rule, which gets in the way of the trial court’s proper judgment. The Crown can then relieve their burden using a “curative proviso,” which allows that the Court can dismiss any appeal if the Crown can show that no prejudice was caused by the error or irregularity. Accordingly, in this case, the frst instance judge failed to make Mr. Tompouba aware of his rights. Then, in the appeal, the Court of Appeal judge improperly placed the burden of proving the infringement of his rights on Mr. Tompouba. The Supreme Court re-emphasized that the curative proviso places the burden on the Crown to show no prejudice. The Supreme Court of Canada held that it ultimately cannot be concluded on a balance of probabilities that Mr. Tompouba would have elected to conduct his trial in English had he had the choice, and they granted his appeal, ordering a new French trial. The Court found that the Crown had not relieved their burden and that there may have been some prejudice caused. The Case: R. v. Kruk, 2024 SCC 7 In short: Appellate courts should adhere to established legal principles when assessing a trial judge's credibility or reliability assessments, considering whether alleged assumptions are indeed findings based on evidence, and applying the appropriate standard of review, such as correctness, for errors of law like reliance on myths, stereotypes, or biases. The Bottom Line: Per Wagner C.J. and Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ: The rejection of a proposed rule against ungrounded common-sense assumptions underscores its divergence from established legal principles, particularly in sexual assault cases, where myths and stereotypes warrant distinct treatment. This rule, misaligned with the protective framework for sexual assault complainants, would extend questioning into irrelevant sexual history, potentially reviving prejudice. It contradicts appellate deference to trial judges and risks appellate overreach into credibility assessments. Appellate courts should adhere to existing standards, distinguishing palpable errors from reasonable assumptions, ensuring fairness without undermining trial judge expertise. Errors of law, such as reliance on stereotypes, warrant correction, but unsubstantiated assumptions demand deference, safeguarding the integrity of trial proceedings. Practice Point: At trial, take a coherent position regarding the difference between facts and assumptions. Consider using Rowe's proposed framework to protect the record on appeal: (1) What generalized expectation can the Judge rely on in their reasoning process? (2) Outline why it is (or isn't) reasonable to rely on this particular general expectation in the unique circumstances of this case? (3) Be clear that the Trial Judge cannot rely on the generalized expectation as itself a conclusive and indisputable fact. The Case:
R. v. Bykovets, 2024 SCC 6 In short: REP in your IP. The Bottom Line: Per Karakatsanis, Martin, Kasirer, Jamal and Moreau JJ.: In the contemporary digital era, Section 8 of the Charter needs to safeguard Canadians’ online privacy effectively, which includes protecting their IP addresses. IP addresses serve as the vital connection between an individual’s online actions and their identity, thus warranting a reasonable expectation of privacy. Consequently, any state request for an IP address constitutes a search under Section 8 of the Charter. Practice Point: There are likely many cases currently in the system in which ITOs were premised on IP addresses obtained without judicial authorization. Applying the doctrine of automatic excision -- recently reaffirmed in R. v. Zacharias -- the IP address must be excised from such a warrant leaving it bereft of the requisite RPG. In the recent case of R v Fiddes, 2019 ONCA 27 the Court of Appeal re-affirmed that violence suffered while in pre-sentence custody can be held as mitigating on sentence. If your client has been assaulted or otherwise sustains injuries while in custody, this is another case to have in your arsenal if the case proceeds to sentencing. Counsel really has a responsibility to argue for enhanced credit (ie. qualitative enhancement beyond 1.5) in cases where his/her client has experienced particular harshness and is able to put that harshness into evidence. In other words, Defence has a duty to create a record of that harshness. As the ONCA stated at para 8: "Concerning sentence, we accepted the appellant's submission that, in the particular circumstances of this case, the trial judge erred by failing to consider, as a mitigating factor on sentence, the serious injuries the appellant suffered as a result of being beaten while in pre-sentence custody. Although the trial judge noted that the appellant had been injured while in custody, she did not enumerate his injuries (four broken ribs, two punctured lungs, a brain injury); nor allude to their serious nature (life threatening). These injuries had a significant impact on the appellant and warranted serious consideration on sentencing. Given their passing mention in her reasons, we are unable to accept the Crown's submission that it is implicit in the trial judge’s reasons that she gave the fact of the injuries any mitigating effect." This particular case came to my attention via Counsel Chris Rudnicki. He is a talented Defence Counsel and a must-follow on the twittersphere.  So it turns out that a weekly ‘case-law round up’ was a little ambitious. Alas, I will instead post randomly at best. Enjoy! In addition to a few comments regarding Bill C-75 (no, sadly this proposed legislation was not an April Fools joke), I have noted a few recent and important cases to be aware of:
Bill C-75 Criminal Defence Lawyers across the country were blind-sided last week by the announcement of Bill C-75. In short, this proposed legislation would bring in a number of significant changes to the way in which criminal charges are prosecuted (and defended). While the Liberal Party and their Justice Minister are attempting to sell these amendments as “bold” reforms aimed at curbing court time and delay, the proposals arguably jeopardize a number of rights and procedural safeguards that are designed to protect Accused people from prejudice and, ultimately, wrongful convictions. Suffice to say Minister of Justice Jody Wilson-Raybould’s announcement set Criminal Defence Twitter ablaze over the weekend as legal practitioners, scholars, and observers weighed in on the proposals. With Courts closed from Friday to Monday, Defence Lawyers had ample time to voice their concerns online. I certainly share my colleagues concerns. In particular, the removal of preliminary inquiries, pre-emptive challenges during jury selection, and the introduction of police “evidence by affidavit” will obstruct Accused persons’ ability to fairly defend themselves. Moreover, there is good reason to think that these reforms will actually increase court-time and further clog the criminal justice system. I have included commentary from some of the Defence Bar’s best and brightest below:     Welcome to the Full Court Press' new, weekend caselaw roundup. This blog will attempt to provide a brief overview of notable cases that come out over the course of the week. If you have any recommendations feel free to send them our way via twitter at @fullcourtPRS. Given that this is our first post, we'll step out of bounds a little and go beyond the past week. R. v. Walia, 2018 ONCA 197
 R. v. G.T.D., 2018 SCC 7
 R. v. Vitalis, 2018 ONCJ 43
 A Scopelliti motion is a critical tool available to an accused person claiming self defence when charged with murder. As the case of R. v. Jackson reveals, however, this motion can be preemptively denied on the basis that--when considered alongside the Crown's counter application to admit bad character evidence of the accused--it might create a lengthy (and therefore prejudicial) side issue.
Using Rosenberg J.A.'s Court of Appeal dissent in Jackson as a guide, this case comment argues that such reasoning risks the unwarranted exclusion of relevant defence evidence. By returning to first principles, Rosenberg J.A.'s dissent provides a nuanced solution whereby bad character evidence of both the deceased and the accused can be selectively admitted without short-circuiting the Scopelliti analysis at trial. This principled approach effectively estops the Crown from using legitimate concerns regarding trial fairness as a sword as opposed to a shield. 18 Can. Crim. L. Rev. 331 The full article can be viewed at via Westlaw here. The crisis of Aboriginal over-incarceration in Canada is one of the most well-documented features of our Criminal Justice System. This crisis is especially profound in the youth context. While the Youth Criminal Justice Act (YCJA) has reduced Canada's overall youth incarceration rate in recent years, the relative proportion of detained Aboriginal youth has actually increased. This article explores Aboriginal youth overrepresentation in correctional services under the YCJA in an attempt to discern why it has been less effective at reducing custody rates for Aboriginal youth compared to their non-Aboriginal peers. This article suggests that the YCJA has failed to remedy Aboriginal youth overrepresentation because it has focused too heavily on sentencing principles and judicial discretion. It is argued that more attention must be paid to the earlier stages of the criminal justice process during which Police, Crown Attorneys, and Probation Officers exercise low-visibility discretion in ways that disproportionately circumscribe the eventual range of sentencing options available to Aboriginal youth offenders. [Alberta Law Review, Vol. 52, No. 4, 2015] The full article can be viewed via Quicklaw here. |